Summary: We will not investigate Mrs X’s complaint about the Council’s handling of her son’s education health and care plan annual review. This is because Mrs X wishes to challenge the outcome and it would be reasonable for her to appeal to the SEND Tribunal. We will not separately investigate Mrs X’s complaint about the Council’s delay in completing the process because it does not cause her such significant injustice that it warrants investigation.

The complaint

1. The complainant, Mrs X, complains the Council took too long to complete her son’s education, health and care (EHC) Plan annual review. She also disagrees with the outcome of the review, which was to maintain the EHC Plan without the changes she wanted.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.

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How I considered this complaint

5. I considered information provided by Mrs X’s representative, Ms Y, and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. We cannot investigate Mrs X’s complaint about the Council’s decision not to amend the EHC Plan with the changes she wanted. This is because the decision carries a right of appeal to the SEND Tribunal which it would be reasonable for her to use, and which Ms X says she intends to use.
8. Ms X raises concerns about the Council’s consideration of its duty under Section 19 of the Education Act 1996 but this is not sufficiently separate from its decision not to amend the EHC Plan for us to investigate it. The school put in place additional provision while the annual review took place and the injustice Mrs X claims stems from the decision not to incorporate this within her son’s EHC Plan.
9. While the Council’s delay in completing the annual review process is an issue we could investigate, it does not in this case cause such significant injustice that it would warrant investigation. I appreciate it has delayed Mrs X’s right of appeal against the decision and caused her and her son some uncertainty and anxiety but we cannot investigate all the complaints we receive and must prioritise the most serious cases.
10. The Council’s delay, which amounts to approximately three months, meant that Mrs X’s son received the additional provision for longer than he would otherwise have been entitled to. So although it has put back Mrs X’s appeal it also carried some benefit. The case also does not raise matters of significant public interest which would warrant further investigation.

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Final decision

11. We will not investigate this complaint. This is because it would be reasonable for Mrs X to appeal to the SEND Tribunal. We will not investigate Mrs X’s complaint about the Council’s delay in completing her son’s annual review because the injustice she claims is not significant enough to warrant investigation.

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Investigator's decision on behalf of the Ombudsman